Judge Holly J. Fujie, Case 21STCV30914 2022-08-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and serve at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action arises out of the purchase of an allegedly defective vehicle. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of implied warranty of merchantability under the Song-Beverly Warranty Act; (2) breach of express warranty under the Song-Beverly Warranty Act; (3) breach of express warranty under the Magnuson-Moss Warranty Act; and (4) breach of implied warranty of merchantability under the Magnuson-Moss Warranty Act.

On January 13, 2022, Plaintiff filed: (1) a motion to compel responses to Plaintiff’s Demand for Inspection and Copying, set one (the “Inspection Motion”); and (2) a motion to deem Plaintiff’s Request for Admissions, set one admitted (the “RFA Motion”) (collectively, the “Motions”). The Motions are both opposed (collectively, the “Oppositions”).[1]

Under CCP section 2033.280, subdivision (a), where requests for admission are propounded on a party and that party fails to serve a timely response, that party waives any objection to the requests. (CCP § 2033.280, subd. (a).) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (CCP § 2033.280, subd. (b).) The court must grant a motion to have admission requests deemed admitted where responses have not been served prior to the hearing, or, if such responses were served, they were not in substantial compliance with CCP section 2033.220. (CCP § 2033.280, subd. (c).) It is mandatory that the court impose a monetary sanction the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated the motion. (Id.)

Where there has been no timely response to a demand for inspection, copying, testing or sampling, the demanding party may seek an order compelling a response. (CCP § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (CCP § 2031.300, subd. (a).)

Plaintiff propounded the discovery requests at issue in the Motions on October 15, 2022. (Declaration of Nadia Yashar (“Yashar Decl.”) ¶ 2, Exhibit 1.) The proof of service on the propounded discovery indicates that Defendant was served by mail. (See Yashar Decl., Exhibit 1.) Defendant did not provide responses on the November 20, 2021 due date or request an extension. (Yashar Decl. ¶ 3.)

In the Oppositions, Defendant indicates that Plaintiff sent discovery requests on October 15, 2021 to Defendant’s counsel’s email address without confirming the proper e-service address. (Declaration of Erin E. Hanson Decl. ¶¶ 5-6, Exhibits 2-3.) The requests were not sent to a proper e-service address and as a result, Defendant’s counsel was unaware of the requests until receiving the Motions. (Hanson Decl. ¶ 5.) Defendant’s counsel did not receive hard copies of the requests and checked with staff who process the law firm’s mail who indicated that the office did not receive hard copies of the requests. (Hanson Decl. ¶¶ 5, 7.)

Upon receipt of the Motions, Defendant’s counsel informed Plaintiff’s counsel about the improper service. (Hanson Decl. ¶ 6, Exhibit 3.) Defendant’s counsel agreed to accept service on January 14, 2022 and provided that responses would be due on February 14, 2022. (Id.) Defendant served responses on February 14, 2022. (Hanson Decl. ¶ 4, Exhibit 1.)

Defendant argues that e-service was improper because Plaintiff did not confirm the proper e-service address. Under CCP section 1010.6, subdivision (e)(1), a party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served. (CCP § 1010, subd. (e)(1).)

Despite Defendant’s evidence regarding e-service, the proofs of service attached to the discovery requests indicate service by mail. The Court is therefore not persuaded by Defendant’s argument regarding the propriety of service. Nonetheless, as Defendant has now served responses, the Motions are MOOT.

The Parties each request monetary sanctions in connection to the Motions/Oppositions. In light of the Court’s discussion above, both requests are DENIED.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] As the Motions and Oppositions present substantially similar factual backgrounds and raise substantially similar arguments, the Court addresses the positions of Plaintiff and Defendant (the “Parties”) concurrently.